fore be expanded without a violation of the law.
When judging the intensity of the impairment of fundamental rights, it is important
that every participant in international telecommunications traffic is exposed to the
monitoring measures whether or not there is a relationship between the monitoring
and his or her behaviour and whether or not the monitoring was provoked by his or
her behaviour. As regards content, acts of communication of all kinds are screened in
their entirety. In this context, it is possible that Federal Intelligence Service staff takes
note of the communication. In this respect, the fact that the search concepts, due to
the state of technological development, only insufficiently fulfil the function that is assigned to them by the parliament, i.e. to make human access to the obtained material
unnecessary until comparison has taken place, shows its effects.
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According to the statements of the Federal Intelligence Service, which have been
confirmed by the experts, only in the exceptional case of telex monitoring is fully automatic comparison of search terms feasible. Telex traffic, however, is less and less frequent. Contrary to this, fax traffic can only be automatically compared and reviewed
to a limited extent and telephone traffic cannot be automatically compared and reviewed at all. This explains why most intelligence, by far, is gathered by means of socalled formal search concepts (foreign subscriber numbers) based on the exemption
provision of § 3.2(3) of the G 10 Act. According to the statement of the expert Professor Waibel, voice recognition procedures cannot yet be effectively employed, in spite
of their continuous improvement, in the implementation of the G 10 Act nor will they
be effective in the near future without human contribution. Independent of the practice
of the Federal Intelligence Service, the Act does not preclude that the comparison is
done by staff, even though the parliament may have imagined comparison taking
place automatically.
232
When judging the intensity of the impairment of fundamental rights, the lack of
anonymity of the participants in a communication is to be considered as well. The fact
that the intelligence gathered relates to specific individuals is not restricted to the
screening and recording phase. In practical work with the intelligence gathered, this
relation is preserved. According to the statements of the Federal Intelligence Service,
this is necessary, in some of the cases, in the framework of evaluation, to assess and
classify the intelligence. The Federal Intelligence Service eschews the use of technically possible temporary memory systems that would allow it to access the information regarding the circumstances of the call, including the parties' identities, only if it
proves necessary to make use of information regarding the individuals involved in the
communication contact in order to fulfil the tasks of the Federal Intelligence Service.
233
The risks that can objectively be expected or must be feared begin to emerge as
early in the monitoring process as that point when the Federal Intelligence Service
takes note of an act of communication. In fact, even before the Federal Intelligence
Service takes note of acts of communication, the fear of being monitored, (and of the
dangers of recording, subsequent evaluation, possible transfer and further utilisation
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